At our May 2021 UMRA A.M., Law School Professor Stephen Befort conducted a brief master class on arbitration and then provided a comprehensive and insightful look at the use of arbitration in police misconduct cases.

Using empirical research that he conducted and published with two other University of Minnesota professors, Befort addressed whether it is possible to fire bad cops and whether arbitration privileges white police officers over citizens of color. After probing these questions at length, he engaged in a lively and prolonged discussion with our membership about the need for change and how that might be accomplished.

First to the data. Befort and his colleagues, Carlson School Professor Emeritus Mario Bognanno and Professor of Law Emerita Laura Cooper, published an empirical study of discipline and discharge in labor arbitrations in Minnesota. They looked at 2,055 published and unpublished awards in Minnesota over a 24-year period. The data showed the following in discharge cases:

52.44%         management win
19.76%         union win
27.79%         split decision

A split decision usually means that an officer was reinstated but had to forfeit all back pay. 

In another study, involving 92 cases of police misconduct in Minnesota from 2011–15, the results were similar to all arbitrations:

53.3%           management win (49 cases)
22.8%           union win (21)
23.9%           split decision (22) 

Befort said cases that get arbitrated are the difficult matters that are close because of disputed facts. The cases where the facts are undisputed, or the results are obvious, are resolved without the need for arbitration—the point being that arbitrations represent only a subset of police misconduct matters and only those cases where there is substantial disagreement. 

Mitigating factors

The second study looked at the reasons for reinstatement in the 43 cases where that occurred. In almost half the cases, the arbitrator found that misconduct had not been proven. Reinstatement was also supported in cases where there were inadequate investigations, procedural defects, or other mitigating factors. 

Befort concluded it is not impossible to fire bad cops because over half the time those discharges are upheld by arbitrators. He then posed a final question as to whether a 50 percent rate was acceptable as a matter of social policy—that is, whether it is more important to remove allegedly bad cops than to provide this level of due process.

There is, of course, no obvious answer, but if we got rid of arbitration it would give police chiefs unfettered discretion and create reliance on courts for review of these decisions, Befort said. He noted that Minnesota recently passed legislation to replace the traditional arbitration selection process with a rotating panel of arbitrators in police cases.

There followed a storm of questions from our members and a lively discussion of the topic. 

Our thanks to Professor Befort for an educational, engaging, and important discussion.    

—Bill Donohue, UMRA past president